Michael Santo Colosimo v The Queen - [2012] NZSC 42

IN THE SUPREME COURT OF NEW ZEALAND

SC 19/2012
[2012] NZSC 42

MICHAEL SANTO COLOSIMO

THE QUEEN

Court: Elias CJ, Blanchard and William Young JJ

Counsel: G P Curry for Applicant
M J Lillico for Crown

Judgment: 30 May 2012

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The applicant has sought leave to appeal to this Court against a decision of the Court of Appeal dismissing his appeal against convictions for forgery and dishonestly using a document.[1] The allegation against him at his trial, which the jury found proved, was that he forged a financial statement concerning a restaurant business and presented it to persons who were negotiating a purchase of the business. The document purported to have been prepared by his former accountants and substantially overstated the profits of the business for a ten-month period to November 2005.
[1] Colosimo v R [2012] NZCA 60.
At the beginning of the trial the defence was opened on the basis that the document was not a forgery but that, if it were, then Mr Colosimo was unaware of it and any forgery had been committed by a Mr Harvey. The “no forgery” defence ran into immediate difficulty when the accountant who supposedly prepared the document, Mr McFadden, disowned it. His evidence to that effect was not challenged in cross-examination.
New accountants had been engaged by the applicant in January 2006. An employee of the new firm, Mr Manning, was called to give evidence for the Crown. In the course of his evidence he disclosed that he had an electronic file which included a draft trading statement for the ten-month period. That statement was qualified as to its accuracy and showed a trading profit some $100,000 below that in the statement given to the purchasers. It was apparent that the draft had been used to create the forgery by the addition of $100,000 to the sales revenue and net surplus figures and by the deletion of the qualification. The forgery combined the altered draft and a front page which bore the letterhead of Mr McFadden’s firm and a form of waiver statement used by his firm. Neither the police nor the Crown had been aware of Mr Manning’s electronic file but it is evident that the defence already had a copy of the draft statement in its unaltered form. Computer experts subsequently gave evidence that the alterations were done on Mr Colosimo’s office computer on 3 February 2006.
Nonetheless, the defence claimed to have been taken by surprise by Mr Manning’s disclosure. The Judge therefore adjourned the trial overnight. The next morning he ruled that the documents disclosed by Mr Manning were admissible. He then adjourned the hearing for a further day to enable the parties to consider them and make further inquiries. When the trial resumed, trial counsel for the defence sought a mistrial on the ground of prejudice caused by the late disclosure of the documents. The Judge dismissed that application.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michael Santo Colosimo v The Queen

Details

AGLC: Michael Santo Colosimo v The Queen [2012] NZSC 42
Case: [2012] NZSC 42
Decision Date: 30 May 2012

CaseChat Overview and Summary

The applicant in this case, Michael Santo Colosimo, sought leave to appeal against his conviction for forgery and dishonest use of a document, following a decision by the Court of Appeal dismissing his appeal. The case before the Supreme Court involved the admissibility of a draft trading statement that was not initially disclosed by the Crown and the fairness of proceeding with the trial under these circumstances. The Supreme Court was tasked with determining whether the trial judge's decision to allow the draft trading statement as evidence and to proceed with the trial was correct, and whether there was any failure by the prosecution to disclose relevant information as required by the Criminal Disclosure Act 2008.

The Supreme Court reviewed the circumstances surrounding the disclosure of the draft trading statement and the subsequent rulings by the trial judge. The Court found that the defence had not been entirely surprised by the disclosure, as they had already indicated in their opening that they would argue there must have been a forgery by someone else, namely Mr Harvey. The Court of Appeal had already dismissed the argument that it was unfair to proceed with the trial, and the Supreme Court agreed with this assessment. Regarding the alleged failure by the prosecution to disclose the electronic file containing the draft trading statement, the Supreme Court held that the prosecution was not obligated to disclose material that was not in its possession or control and of which it was unaware. The information was disclosed as soon as it was reasonably practicable after it came to the prosecution's attention.

The Supreme Court dismissed the application for leave to appeal, concluding that there was no appearance of any substantial miscarriage of justice. The reasoning and outcome of the Court were based on the established facts and the legal principles concerning disclosure under the Criminal Disclosure Act 2008. The Court found no basis to overturn the decisions of the lower courts, and the appeal was accordingly dismissed.

Orders